Revenge porn: Do rights of website operators trump those of victims?

An 18-year sentence for the operator of a revenge porn website is seen as a victory for victims' advocates. But without a new federal law, it might be a hollow win, they say.

Nelvin C. Cepeda/U-T San Diego/AP

Kevin Bollaert sits in court during his sentencing hearing in San Diego on Friday. Mr. Bollaert was sentenced to 18 years in prison for operating a 'revenge-porn' website and charging victims to remove the images. Prosecutors said he earned about $30,000 from people who paid to remove the images.

A California jury’s decision to sentence the operator of a pornographic website to 18 years in prison is being hailed as a victory for the women whose images were used without permission. But activists worry that such websites cannot be effectively shut down until changes are made to federal law.

Sixteen states are attempting to criminalize “revenge porn” websites that allow users to publish nude and sexually explicit pictures of women without their approval. The websites often become venues for blackmail, with the users demanding payment to take the images down.

But the 1996 Communications Decency Act (CDA) protects website operators from being sued for content on their sites that others have created. The intent of the law is to protect social media sites and news organizations from lawsuits over comments or third-party content posted to their websites. But anti-harassment advocates say the law provides a shield for revenge porn websites like “You Got Posted.”

The California jury sentenced Kevin Bollaert, the operator of “You Got Posted,” to 18 years for extortion and identity fraud. But analysts have speculated that Mr. Bollaert could use Section 230 of the CDA to appeal the conviction.

“Section 230 is superior to state laws. There is also no uniformity in state laws, the laws vary from state to state. A federal law is mandatory,” says Carrie Golberg, a lawyer with the organization Cyber Civil Rights Initiative.

“You Got Posted” allowed users to include a subject’s name, location, age, and Facebook profile. Prosecutors said that more than 10,000 images were posted between Dec. 2, 2012 and Sept. 17, 2013. Bollaert also operated the site ChangeMyReputation, from which he would remove photos posted to his “You Got Posted” site for a fee of around $350. He collected around $30,000 from victims over the 10-month period.

Though California was one of the first states to pass anti-revenge porn legislation, Bollaert was charged before it took effect. Section 230 of the CDA could be used to undo some of the extortion and identity theft charges, especially if Bollaert did not personally seek out a victim’s personal information, writes Adam Steinbaugh, a law and technology blogger.

Others agree. While it’s unlikely Section 230 could be used to overturn criminal charges, it could affect Bollaert’s sentence, wrote Tim Cushing in Tech Dirt.

“As ugly as it seems, the protections afforded operators of sites hosting user-generated content could keep Bollaert from being incarcerated – or at least take a huge chunk out of his 18-year sentence. But that's the dual edge of these sorts of protections,” he said.

Indeed, some privacy rights advocates don’t want to see the CDA changed. “Targeting service providers for the actions of their users is misguided” and would face “very strong skepticism,” said Matt Zimmerman, a senior attorney for Electronic Frontier Foundation, in an e-mail to The Wall Street Journal’s Law Blog.

But proponents of a federal law protecting sexual privacy say it might be the only effective way to hold perpetrators accountable and could be carefully worded to protect First Amendment rights. Rep. Jackie Speier (D) of California told Gizmodo in late February that she as plans to unveil legislation that would make revenge-porn a federal crime.

In addition to his 18-year sentence, Bollaert has been ordered to pay a $10,000 fine and $15,000 in damages to the victims.

Ms. Goldberg of the Cyber Civil Rights Initiative says that punishment is certainly not too light.